Federal Sentencing Guidelines - Rosemary T. Cakmis and Fritz Scheller

• Publication year: 2002

Federal Sentencing Guidelinesby Rosemary T. Cakmisand

Fritz Scheller**

I. Introduction

In the years leading up to 2001, drug cases played a significant role in Eleventh Circuit case law relating to the United States Sentencing Guidelines ("U.S.S.G.").¹ However, in 2001, the Eleventh Circuit published fewer cases than in previous years addressing the guidelines for drug cases.² This decline appears to be the result of the United States Supreme Court decision in Apprendi v: New Jersey,³ which changed the focus of Eleventh Circuit drug cases.

At first, Apprendi appeared to redefine the law in federal drug cases and open a floodgate of challenges to drug sentences.⁴ However, the

Eleventh Circuit has limited the scope of Apprendi in drug cases, as well as in other contexts, and has held Apprendi inapplicable to federal sentencing guidelines.⁵ Notwithstanding, Apprendi-related cases consumed much of the Eleventh Circuit's time in 2001.⁶ These cases are discussed herein primarily in connection with relevant conduct⁷ and the burden of proof for sentencing factors.⁸

The other offenses that received a relatively significant amount of the Eleventh Circuit's attention in 2001 involved economic,⁹ firearm,¹⁰ and immigration violations.¹¹ Specifically, the court issued numerous decisions concerning loss calculations under the robbery and fraud guidelines,¹² firearm enhancements,¹³ and the aggravated felony enhancement for immigration offenses.¹⁴ The court also issued several decisions discussing the chapter three adjustments, including vulnerable victim,¹⁵ role in the offense,¹⁶ obstruction of justice,¹⁷ grouping of multiple counts,¹⁸ and acceptance of responsibility.¹⁹ Additionally, the

Eleventh Circuit addressed the relationship of various guidelines to each other and the prohibition against double counting.²⁰

II. Chapter One, Part B: General Application Principles

A. Relevant Conduct

U.S.S.G. section 1B1.3 allows for relevant conduct to be considered in calculating a defendant's sentence.²¹ In United States v. Harris,²² the Eleventh Circuit specifically held that "Apprendi does not require the district court to disregard relevant conduct" as long as the sentence imposed does not exceed the statutory maximum for the offense of conviction.²³ The Eleventh Circuit noted that the sentencing guideline range will never exceed the statutory maximum because U.S.S.G. section 5G1.1 prohibits the guidelines from increasing the penalty beyond the statutory maximum.²⁴

Other Eleventh Circuit cases decided in 2001 that relate relevant conduct to specific offense guidelines or guideline adjustments are discussed in connection with those specific guidelines.²⁵

B. Information to be Used in Selecting a Point Within the Guideline Range

In United States v. Burgos,²⁶ the Eleventh Circuit recognized that although 18 U.S.C. Sec. 3661²⁷ and U.S.S.G. section 1B1.4²⁸ afford courts

"wide discretion" in selecting a sentence within the applicable guideline range, such discretion is not unlimited.²⁹ The Eleventh Circuit explained that the "four sentencing objectives courts must take into account when fashioning a sentence [are] punishment, general deterrence, specific deterrence, and rehabilitation."³⁰ If a court considers a factor that is irrelevant to these purposes, "then the imposed sentence necessarily exceeds the court's sentencing discretion."³¹ Furthermore, the court's consideration of these objectives is limited by the prohibition against considering information relating to "'race, sex, national origin, creed, and socioeconomic status of offenders.'"³²

The district court in Burgos sentenced the defendant to the high end of the applicable guideline range based on her refusal to cooperate against her husband in an unrelated case.³³ The Eleventh Circuit reversed, finding that this rationale did not relate to the four penological objectives, and thus, exceeded the limits placed on a court's discretion by the guidelines and the statute.³⁴

III. Chapter Two: Offense Conduct

A. Part A: Offenses Against the Person

In sentencing the defendants for offenses involving the taking of hostages, the district court in United States v. Ferreira³⁵ applied U.S.S.G. section 2A4.1(b)(1), which provides for a six-level enhancement "'[i]f a ransom demand or demand upon government was made'" in the course of a kidnapping or abduction.³⁶ The Eleventh Circuit found that even though the defendants did not deliver the ransom letter they had drafted, a ransom demand "was made" for purposes of the guideline enhancement.³⁷ The Eleventh Circuit explained that the guidelines "must be 'read together'" with the commentary.³⁸ The commentary to section 2A4.1 provides that in kidnapping conspiracy or attempt cases, the court must "apply any adjustment that can be determined with reasonable certainty."³⁹ Based on the telephone request for a meeting with the victim's husband and the seized ransom note, the Eleventh Circuit accepted the district court's finding that it was "reasonably certain that the appellants would have made a ransom demand if doing so had been feasible."⁴⁰

B. Part B: Robbery, Extortion, and Blackmail

1. Carjacking Enhancement. The robbery guideline calls for a base offense level of twenty, to which two levels are added if the offense involved a carjacking.⁴¹ The carjacking enhancement was upheld in two cases in 2001. The first case involved a challenge under Apprendi. In United States v. Le,⁴² the Eleventh Circuit rejected the Apprendi-based challenge to the carjacking enhancement, noting that Apprendi does not apply to guideline enhancements that do not affect the statutory maximum.⁴³

The second case addressed the prohibition against double counting. In United States v. Naves,⁴⁴ the Eleventh Circuit noted that impermissible double counting only occurs in cases when one guideline increases a defendant's punishment based on harm that already has been fully taken into account by another guideline.⁴⁵ Double counting is permitted, however, '"if the Sentencing Commission intended the result, and if the result is permissible because each section concerns conceptually separate notions related to sentencing.'"⁴⁶ In concluding that the carjacking enhancement did not constitute impermissible double counting, the Eleventh Circuit assumed that the Sentencing Commission knew that the enhancement "would be imposed in every case involving a conviction under [the carjacking statute], and intended this result," by creating a base offense level of twenty-two for convictions under the carjacking statute.⁴⁷

2. Loss. In calculating the defendants' guidelines for their kidnapping and extortion scheme,⁴⁸ the district court in United States v. Diaz⁴⁹ applied the robbery guideline.⁵⁰ The court increased the defendants' base offense level under U.S.S.G. section 2B3.1(b)(7), which allows for graduated increases based on the amount of loss.⁵¹ Despite the fact that the defendants never obtained the money they demanded,⁵² the Eleventh Circuit upheld the loss enhancement by cross-referencing to the guideline on attempt or conspiracy, which allows for consideration of "the value of items the defendant attempted to steal."⁵³

3. Enhancement for Being in the Business of Receiving and Selling Stolen Property. The guidelines for offenses involving the alteration or removal of motor vehicle identification numbers are calculated under U.S.S.G. section 2B6.1.⁵⁴ United States v. Maung⁵⁵ involved an issue of first impression in the Eleventh Circuit concerning a two-level enhancement under U.S.S.G. section 2B6.1(b)(2) for being "in the business of receiving and selling stolen property."⁵⁶ The district court applied the enhancement in Maung to a defendant who processed false paperwork and made arrangements for the exportation of the stolen cars but was not personally involved in the receipt or sale of the stolen cars.⁵⁷

In rejecting the application of the enhancement, the Eleventh Circuit relied on the plain language of the guideline.⁵⁸ The court concluded that the fact that the defendant did not actually sell the stolen cars precluded the finding that he was "in the business of receiving and selling stolen property."⁵⁹

C. Part D: Offenses Involving Drugs

1. Drug Quantity Calculations. Under U.S.S.G. section 2Dl.l(c), the base offense level for drug offenses is determined by the type and weight of the drugs involved.⁶⁰ Although the drug weight set forth in section 2Dl.l(c) is defined as "the entire weight of any mixture or substance containing a detectable amount of the controlled substancet,]" the guidelines do not define the terms "mixture" and "substance."⁶¹ This led to a question of first impression in United States v. Camacho⁶² concerning how to weigh liquid lysergic acid diethylamide ("LSD") for guideline purposes.⁶³

If the liquid LSD is placed on a carrier medium, the weight of the carrier medium is not included in the weight of the LSD for guideline purposes.⁶⁴ However, under the guidelines, the liquid solution containing LSD is not considered a carrier medium.⁶⁵ Thus, when the pure

LSD has been suspended or dissolved in a liquid solvent, the Eleventh Circuit determined that "the weight of the pure LSD alone should be employed to ascertain the appropriate base offense level."⁶⁶

The next two cases addressed drug quantity calculations when no drugs were seized from the defendants' methamphetamine laboratories. In United States v. Smith,⁶⁷ the government's experts testified at sentencing that 2011 grams of methamphetamine could have been manufactured by the defendants if they had used the most abundant precursor chemical found in the laboratory, and 91 grams could have been produced using the least abundant precursor chemical found.⁶⁸ The district court calculated the defendants' guidelines based on the drug quantity that the more abundant precursor chemical could have produced.⁶⁹

In upholding this calculation, the Eleventh Circuit noted that when no drug seizure occurs, the drug...